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My Brain Made Me Do It: Neuroscience & Criminal Law

On Behalf of | Mar 16, 2016 | Uncategorized

CBC’s the Nature of Things will be airing a fascinating documentary tomorrow night, March 17 at 8 PM, about the intersection of neuroscience and criminal behaviour. (Check out the trailer here.) The show asks some important questions about how the human brain affects behaviour and how the criminal justice system deals with this information. Essentially it comes down to asking who is ultimately to blame for criminal behaviour, the individual or their brain? 

For me, one of the documentary’s most compelling examples was of an individual with no criminal background who all of a sudden started to hoard pornography. His behaviour escalated and he was later arrested for sexual assault against a child. A brain scan revealed a massive tumour that was pressing on a part of the brain responsible for inhibiting urges and desires. Once the tumour was removed, his symptoms of paedophilia disappeared. Interestingly, his symptoms began to re-emerge six months later and a brain scan showed that the tumour had grown back.

While this is perhaps an extreme example, the film also shows research of brain scans done on individuals who are incarcerated. The results show a pattern characterized as less ‘muscle mass’ in the emotional regions of the brain and a weaker connection between the frontal lobe and temporal lobe. These characteristics can affect empathy, impulse control and decision making. Similarly, drugs can affect our brain’s ability to manage information, throwing the rewards systems off balance. In fact, the film showed some examples of individuals who were given medication for Parkinson’s disease, and subsequently found themselves engaging in compulsive behaviours, from obsessively studying to gambling.

These stories made me reflect on many of the clients that I’ve represented over the years, who have acted in ways that didn’t make sense even to themselves. What would their brain scans look like? And how might that affect their cases?

The film doesn’t seem to suggest that neuroscience should necessarily absolve an individual of all responsibility for a crime, but instead might give some context as to their moral culpability. We use drug courts to provide a different structure to the court process that focuses on treatment rather than strict punishment, so maybe there could be room for this in terms of a person’s brain biology.

While the more extreme examples of brain lesions might come into the territory of NCR (not criminally responsible), the more common cases where a person’s brain is wired such that they are pre-disposed to criminal activity could provide a useful mitigating factor on sentence. In the same way that drug addiction or mental health are used to contextualize a person’s behaviour, neuroscience could provide significant insights. More importantly, this information could hopefully help to treat and rehabilitate those being sentenced, rather than just warehousing them in prisons. Indeed, the documentary shows that often the punishment of jail does nothing to deter behaviour, given the underlying reasons for the behaviour.

In the end, the documentary seems to suggest that as technology develops, criminal behaviour may become more ‘treatable.’ From my perspective, this shift in technology will need to be accompanied by a shift in how we understand culpability and moral responsibility, and an emphasis on rehabilitation rather than deterrence. These views are certainly at odds with the “Tough on Crime” approach that has dominated Canada’s justice system under our previous government. But a focus on the underlying causes of crime, be it the brain, addiction, mental illness or something else, coupled with an emphasis on treatment and rehabilitation should benefit both those within the criminal justice system and the community at large.

(If you’re not able to catch the doc on CBC tomorrow night, it will be posted on March 18 at

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